Several significant judicial decisions affecting law enforcement have issued since the first of the year. I am issuing this bulletin to update you on these cases.

DUI

    In State v. Blair, ___ Kan. App. 2d ___ (No. 81,102 2/12/99) the Kansas Court of Appeals held that observed erratic driving is not a requirement for conviction of driving under the influence of alcohol. The stop was for reasons other than erratic driving, and the officer testified defendant had an odor of alcohol around her and had some problems with field sobriety tests. This evidence, when coupled with defendant's statements that she had four beers, was drunk, knew she was drunk and would take a blood test to prove it, was sufficient to convict of DUI.

    In Ruble v. Kansas Department of Revenue, ___ Kan. App. 2d ___ (No. 80,301 filed 2/5/99), the defendant failed a DUI breath test and had his license suspended on appeal to district court. However, the district court set aside Ruble's 330-day license restriction because the officer failed to notify Ruble of the restriction period. Revenue appealed, and the Kansas Court of Appeals held the officer's failure to notify a suspected drunk driver of the restriction period was irrelevant. The court reinstated the restriction period. Ruble also claimed the evidence of test failure was insufficient because he blew a 0.087, the standard checked out within range at 0.072, and the 0.008 "margin of error" required a showing that his BAC was 0.008 higher than 0.080. The court rejected this argument holding that if the instrument is certified and appears to be working properly, the operator is certified, and the protocol is followed, there is no requirement to overcome any margin of error.

Interrogation

    In State v. Ronald E. Timley, Sr., ___ Kan. App. 2d ___ (No. 78,013 12/31/98), the Kansas Court of Appeals upheld the surreptitious videotape recording of statements by an arrested individual in a patrol car. Topeka Police Officers Chapman and Hill arrested the defendant and his partner near the scene of a break-in, handcuffed them, and placed them in the back seat of a patrol car. Chapman started the in-car camera, and left his microphone in the vehicle. Defendant and his partner incriminated themselves on the videotape. The tape was admitted into evidence and the defendant was convicted. The appellate court stated defendant had no reasonable expectation of privacy in the back seat of a police car, he was not subjected to custodial interrogation requiring Miranda warnings, and there was no reversible error in admitting the evidence over a confrontation clause objection. The court, however, reversed defendant's conviction of felony obstruction under K.S.A. 21-3808, stating there was no evidence the uniformed officers were attempting to serve a "writ, warrant, process or order of a court," and it held that a warrantless felony arrest is not "legal process" as defined by the statute. Curiously, the court never addressed whether defendant, who ran from the officers, obstructed them "in the discharge of any official duty." K.S.A. 21-3808(a).

Prosecutorial Misconduct

    In the much-awaited decision in United States v. Singleton ___ F.3d ___ (No. 97-3178 1/8/99) the entire United States Court of Appeals for the 10^th Circuit held that federal prosecutors CAN offer witnesses promises of leniency in exchange for witness's truthful testimony. Doing so does not violate a federal statute prohibiting "anyone" from offering anything of value in exchange for their testimony. Prior decisions in this case were profiled in Legal Bulletins 98-4 and 98-5.

Search & Seizure

    In West Covina v. Perkins, ___ U.S. ___, 119 S.Ct. 678 (1999) the United States Supreme Court held the Constitution does not requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution. State law required the notice to contain the fact of the search, its date, and the searching agency; the date of the warrant, the issuing judge, and the court in which he or she serves; and the persons to be contacted for further information. The Ninth Circuit held the notice must also inform the recipient of the procedure for contesting the seizure or retention of the property taken, along with any additional information required for initiating that procedure in the appropriate court. Also, in circumstances where the warrant need to be kept secret for some reason, the notice must include the search warrant number or, if it is not available or the record is sealed, the means of identifying the court file. It also must explain the need for a written motion or request to the court stating why the property should be returned. The Supreme Court held the due process clause does not require the additional information required by the Ninth Circuit, noting that the aggrieved property owners can discover those procedures on their own by reference to published, generally available state statutes and case law, such as the procedures set forth in K.S.A. §§ 22-2506, 22-2512 (1995 and Supp. 1998).

    In United States v. Rith, ___ F.3d ___ (No. 97-4138 1/19/99), the United States Court of Appeals for the 10^th Circuit set forth the rules on authority for consent to search a home. The defendant's parents believed defendant was involved in gang activity and saw him carrying guns into their home. The parents requested officers to search the house to determine whether the guns were stolen. They gave the officers a house key, but did not accompany them to the home. Defendant, an 18 year old who did not pay rent, initially denied entry and asked for a search warrant, but stated "okay, come in," when officers showed him the house key. The officers searched, then seized the guns when they discovered they were stolen. Defendant, Rith, moved to suppress, claiming he revoked his parent's consent to search and that the parents did not have authority to consent to search of his bedroom. The court held that a valid consent given by someone with authority cannot be revoked by a co-occupant's denial of consent, even if the denial is clear and contemporaneous with the search. Rejecting Rith's authority claim, the court held the state proves authority by showing either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. The court also noted that a presumption of control exists where the co-occupants are parents and children. Here, the defendant was 18 years old, and did not pay rent. The court held this unrebutted presumption of control arising from the parent-child relationship was sufficient to establish authority to consent.

Please contact me if you have any questions about these cases.